It is certainly a lawful reason for a law enforcement officer to stop you if your drive-out tag or temporary license is no longer valid, or if it is not displayed in a valid manner. However, if the officer made a mistake and the tag was valid, or if the tag was in fact displayed in a valid manner, then in some states, the pretext for the stop was then invalid. In other states, such a stop would be upheld as being valid. In Florida, appellate decisions exist on both sides of this issue. If the pretext for the stop is invalid, so is the stop. In such an event, the charges may be dismissed at a pre-trial hearing.
Based on the Fourth and Fourteenth Amendments to the United States Constitution, the police must have an adequate reason before they stop your vehicle. All states, other than California, have state constitutional protections that offer equal or better protections to those found in the federal constitution. California lacks such protections due to the voters being hoodwinked into voting to give up any state constitutional protections that offer greater protection of their liberties than the rights that exist under the United States Constitution.
Once stopped by the police, any indication of possible impairment from alcohol or drugs will lead to a DUI-DWI investigation. A very minor tag irregularity or vehicle equipment problem will authorize an officer to pull the car over, even if the officer’s real purpose is to look for other possible criminal activity.
If the “reason” for the stop is not proper (i.e., not legally sufficient), then from the start of your detention, all further evidence gathered by the police is not admissible in court and all alcohol or drug related charges arising from this incident can be dismissed if a proper motion is filed by your criminal law specialist. Once a motion is filed [typically a “motion to suppress” or a “motion in limine” (a motion to limit the use of evidence)] the trial judge will be asked to review the legitimacy of the traffic stop. This chapter discusses some of the most common legal challenges your attorney might raise on your behalf at a pre-trial motion hearing. Your chances of success will often be based on all of the details you provide during your interview process when you tell your attorney your version of what happened at the time of your arrest.
In addition to your account of the incident details, the officer’s video or audio tape (if any), police report, traffic citations, other documents of your arrest, detention, vehicle towing and bonding out of jail will be of great value to your attorney. If you took any breath test, the printed evidential cards showing these results will also be important.
The Miranda warnings are statements of your legal rights the police must give you when they arrest you. In many DUI cases, officers may never give the Miranda warnings after custody is accomplished (by arresting you). It is much more likely that the advisement you are given in a DUI case is an “implied consent” (or informed consent) advisement. If you have ever heard implied consent warnings from a police officer before or after you were being arrested for some criminal offense, that offense is likely DUI.
Just by driving or controlling your vehicle on any public road in any state, you have given that state your implied consent (in some states, referred to as expressed consent or informed consent) to have law enforcement officers who develop a reasonable suspicion of impairment to seek to test your blood for drugs or alcohol. However, as it is with most laws, the State is held to specific standards as well, if they are going to exercise this option of requesting that you be tested. This blog post describes these “implied consent” laws, and how you can use them to your advantage if you and your attorney have been arrested for DUI-DWI.
These laws, and the standards to which the State and law enforcement officers are held, can be very specific and technical. A time difference of plus or minus ten minutes one way or another, or in what order things were done in your DUI-DWI arrest, might be critically important for your defense. If the police did not follow the established implied consent procedures in your state, your attorney may be able to get the charges against you dismissed even before a trial. This is why your attorney will need to know as precisely as possible what happened between you and any law enforcement officer, what was said by anyone at the arrest location, at what point in time it was said, and when anything was done (such as placing you in handcuffs or calling a tow truck). If your attorney’s questions seem overly critical or nit-picky, his or her efforts to build your defense are the reason.
In some states, a pre-trial deposition (sworn testimony from key state witnesses taken down verbatim by a court reporter), can be requested by your attorney. Also, as part of your administrative license suspension (or revocation) hearing, your attorney may be able to use civil “discovery” tools such as a “notice to produce” (to compel documents or tapes to be turned over), “requests to admit” certain facts, or other civil forms of discovery to uncover favorable evidence. In some jurisdictions, the use of pre-trial “civil” depositions of police officers may be available for your attorney to use.
The primary purpose of forcing the state to reveal or turn over 100% of any available items that will (or could be) used to help prove your case at trial is that your skilled DUI-DWI defense attorney knows that the “smoking gun” that wins your case may be found in these materials. Additionally, any pre-trial hearings or depositions that require your police officers to give sworn testimony “locks in” key testimony from them for your trial when it later gets scheduled. This can lead to the impeachment of the officer and possibly cause his or her total collapse on the witness stand.
Videotapes are generally discoverable. If the police officer who stopped you took videotape recordings on either analog or digital recording devices, a copy of this video is generally available for your defense. This is not true in all states, such as Georgia or Virginia, where the tape must only be made available at trial. Unless allowed to be withheld by statute, failure of the prosecution or the police to release these tapes to your attorney prior to (or within a fixed number of days prior to trial) trial usually means the withheld information cannot be used against you in your trial.
In fighting your DUI case, your side has the right to know some, if not all, information about your arrest and the chemical testing the prosecutor is preparing to use against you at your trial. In some jurisdictions, the disclosure of some facts is mandatory, while in other states, disclosure is not as easy to obtain. The process by which this information is released to your attorney by the prosecution, and also (in most states) from your side to the prosecution, is called “discovery.”
The best DUI trial specialists know what to expect to receive from the prosecutor in a typical case. They also know what they should be provided, and more importantly, when something important appears to be missing. I’ll explin more about the discovery process in my next blog post.